What's the lesson here?
Give a mouse a cookie and he'll want a rehearing?
Don't look a gift opinion in the dicta?
Ask and ye shall receive everything but what you ask for?
Crystal Cox was a landmark free press plaintiff. Her case set the precedent in the Ninth Circuit that bloggers, like me and even her attorney, enjoy the same protections as the traditional media. And she escaped a $2.5 million defamation verdict.
The case could've ended on a positive note, with only a passing mention of her alleged extortionist past. But when she requested a rehearing, and deletion of a non-dispositive sentence in the opinion (which cited a New York Times article about Cox), it drew the attention of a few very angry people.
Amici Pile On
We've already covered Marc Randazza's amicus brief "in support of neither party," in which he argued that yes, the opinion should be amended, but the court should instead supplement the sentence with references to the record of the case ("defendant offered to repair the very damage she caused for a small but tasteful monthly fee"), or to other courts' findings from his own case against Cox, including both a federal district court and the World Intellectual Property Organization citing her alleged extortionist activities.
A second amicus party, Martin Cain, also armed with court records from his own case, then followed Randazza's lead. Randazza, at one point, cited preliminary findings from the Montana Board of Realty Regulation. Cox argued that those findings should not be considered because of their preliminary nature.
Cain showed up with the final version, and it was even more harsh than the preliminary findings. The MBRR findings, which are attached to his amicus curiae brief, state:
On her February 17, 2011 blog on the www.martincain.com website, [Cox] pos[ted] "Montana Man Admits to Working With Martin Cain to Set Me Up, Harm me, Kill me." [...] Afterwards, the licensee deleted the February 17, 2011 blog and then sent an e-mail to Cain telling him that he could purchase the www.martincain.com website and domain name for $550,000.
In its final report, the MBRR suspended Cox's license for six months (with all but 30 days stayed pending compliance with the other terms and conditions), imposed continuing education duties upon her, levied a fine, and put her license on probation for two years.
The punishment was greater than recommended in the preliminary report because the MBRR unanimously adopted the Hearing Examiner's finding that Cox had "publically revealed confidential information that she gained through a professional relationship with Cain."
Ends With a Whimper
On Wednesday, with four sentences, the panel unanimously voted to deny Cox's request.
Four sentences. And instead of a cleaned-up opinion, she had a light shined on obscure administrative and court rulings. (Because seriously, there's no way anyone would've ever seen MBRR orders. It's the freaking Montana real estate disciplinary board.)
We may be playing Monday morning quarterback here, but it might've been advisable to take the original opinion, pocket the $2.5 million in savings, and gone back to exposing the corrupt on her plentiful blogs. After all, there are plenty more targets out there.
- Obsidian Finance Group v. Cox (FindLaw's CaseLaw)
- 9th Kills Free Speech Twice: First T-Shirts, Then YouTube? (FindLaw's U.S. Ninth Circuit Blog)
- 9th Reversed: Highway or Not, Government Controls Military Bases (FindLaw's U.S. Ninth Circuit Blog)
- A Case About Sunflower Seeds; Adjust Expectations Accordingly. (FindLaw's U.S. Ninth Circuit Blog)